LOAN AGREEMENT
Exhibit 10.3
THIS LOAN AGREEMENT (the “Agreement”) is made effective the 13th day of January,
2010, at Oklahoma City, Oklahoma, among FB S. PLAINS FINANCING, LLC, an Oklahoma limited liability
company (“Borrower”), XXXXX X. XXXXXXX, an individual (“Swickey”), XXXXX X. XXXXXXX, an individual
(“Xxxxxxx”), CAPITAL INVESTORS OF OKLAHOMA, LLC, an Oklahoma limited liability company (“CIO”),
FIRST PHYSICIANS REALTY GROUP, LLC, an Oklahoma limited liability company (“FPRG”), RURAL HOSPITAL
ACQUISITION, L.L.C., an Oklahoma limited liability company (“RHA”), and SOUTHERN PLAINS ASSOCIATES,
L.L.C., an Oklahoma limited liability company (“SPA”) (collectively herein Swickey, Durrett, CIO,
FPRG, RHA, and SPA are referred to as “Guarantor,” whether one or more) and FIRST LIBERTY BANK
(“Bank”), having an address of 0000 X. Xxx Xxxxxx, Xxxxxxxx Xxxx, XX 00000.
1. CONSTRUCTION AND DEFINITION OF TERMS. All terms used herein without definition which are
defined by the Oklahoma Uniform Commercial Code shall have the meanings assigned to them by the
Oklahoma Uniform Commercial Code, as in effect on the date hereof, unless and to the extent varied
by this Agreement. All accounting terms used herein without definition shall have the meanings
assigned to them as determined by generally accepted accounting principles. Whenever the phrase
“satisfactory to Bank” is used in this Agreement, such phrase shall mean “satisfactory to Bank in
its sole discretion.” The use of any gender or the neuter herein shall also refer to the other
gender or the neuter and the use of the plural shall also refer to the singular, and vice versa. In
addition to the terms defined elsewhere in this Agreement, unless the context otherwise requires,
when used herein, the following terms shall have the following meanings:
| 1.1 | “Agency” means the Rural Business — Cooperative Service a/k/a USDA
Rural Development, acting on behalf of the United States Department of Agriculture
(“USDAT). |
| 1.2 | “Borrower’s Note” or “Note” means the First Amended and Restated
Promissory Note to be executed by the Borrower and delivered to Bank to evidence the
Loan contemplated by this Agreement and all extensions, renewals, modifications,
substitutions and increases thereof, in the initial amounts and payable on the terms
stated herein. |
| 1.3 | “Business Day” means any day other than a Saturday, Sunday, or a legal
holiday in the State of Oklahoma. |
| 1.4 | “Collateral” means the security for the payment and performance of the
Obligations which shall be granted to Bank. The property to be pledged to secure the
Obligations includes, but is not limited to: |
| (a) | the Real Property, all of the Borrower’s and/or Mortgagor’s
leases and rents from the Real Property, if any, together with all proceeds,
products and increases thereof; and |
| (b) | With respect to each item of Collateral identified above,
Borrower and Mortgagor warrant they shall have lawful and absolute title to
same and have the full and unqualified right to assign and grant a first
security interest lien in said Collateral to Bank. |
| 1.5 | “Current Ratio” means the ratio of current assets to current
liabilities. |
| 1.6 | “Debt to Equity” means the ratio of total liabilities to Tangible Net
Worth. |
| 1.7 | “Default” means the occurrence of any of the events specified in
paragraph 11 of this Agreement, and the subparagraphs thereunder. |
| 1.8 | “Event of Default” means any of the events described in Section 11
hereof. |
| 1.9 | “GAAP” means generally accepted accounting principles in effect from
time to time. |
| 1.10 | “Governmental Authority” means any nation or government, any state or
other political subdivision thereof and any entity exercising executive, legislative,
judicial, regulatory or administrative functions of or pertaining to government. |
| 1.11 | “Guarantor” means collectively Xxxxx X. Xxxxxxx, an individual, Xxxxx
X. Xxxxxxx, an individual, Capital Investors of Oklahoma, LLC, an Oklahoma limited
liability company, First Physicians Realty Group, LLC, an Oklahoma limited liability
company, Rural Hospital Acquisition, L.L.C., an Oklahoma limited liability company, and
Southern Plains Associates, L.L.C., an Oklahoma limited liability company, and
“Guaranty Agreement” means the Guaranty Agreement of the Guarantors in form and
substance acceptable to Bank and the USDA, including the USDA Unconditional Guarantee,
defined below. |
| 1.12 | “Hazardous Materials” means (a) any “hazardous waste” as defined by the
Resource Conservation and Recovery Act of 1976, as amended from time to time, and
regulations promulgated thereunder; (b) any “hazardous substance” as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended from time to time, and regulations promulgated thereunder; (c) any substance
the presence of which on any property now or hereafter owned, operated or acquired by
Borrower is prohibited by any Law similar to those set forth in this definition; and
(d) any other substance which by Law requires special handling in its collection,
storage, treatment or disposal. |
| 1.13 | “Hazardous Materials Contamination” means the contamination (whether
presently existing or occurring after the date of this Agreement) by Hazardous
Materials on any property owned, operated or controlled by Borrower or for which
Borrower has responsibility, including, without limitation, improvements, facilities,
soil, ground water, air or other elements on, or of, any
property now or hereafter owned, operated or acquired by Borrower, and any other
contamination by Hazardous Materials for which Borrower is, or claims to be,
responsible. |
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| 1.14 | “Indebtedness” shall include all items that would properly be included
in the liability section of a balance sheet or in footnotes to a financial statement in
accordance with generally accepted accounting principles, and shall also include all
contingent liabilities. |
| 1.15 | “Laws” shall mean all ordinances, statutes, rules, regulations, orders,
injunctions, writs, or decrees of any Governmental Authority or political subdivision
or agency thereof, or any court or similar entity established by any thereof. |
| 1.16 | “Lien” shall mean any statutory or common law consensual or
non-consensual mortgage, pledge, security interest, encumbrance, lien, right of setoff,
claim or charge of any kind, including, without limitation, any conditional sale or
other title retention transaction, any lease transaction in the nature thereof and any
secured transaction under the Uniform Commercial Code of any jurisdiction. |
| 1.17 | “Loan” or “Note” means the Promissory Note made payable by the Borrower
in favor of the Bank in the principal amount of Four Million Seven Hundred Thousand and
00/100 Dollars ($4,700,000.00), dated December 31, 2009, as amended by that certain
First Amended and Restated Promissory Note dated of even date herewith, together with
any and all renewals, extensions, modifications, and/or restatements thereof. |
| 1.18 | “Loan Documents” means this Agreement, the Borrower’s Note, the
Mortgage, and all other instruments, documents and writings previously or
contemporaneously executed and/or delivered by or on behalf of the Borrower pursuant to
or in connection with the transactions described in this Agreement, together with any
and all renewals, amendments or modifications of any of the above. |
| 1.19 | “Loan Note Guaranty” means USDA Form 4279-5 to be issued to Bank by the
Agency containing the terms and conditions of the USDA 80% Guaranty. |
| 1.20 | “Mortgage” mean that certain Mortgage executed by Southern Plains
Associates, LL C, an Oklahoma limited liability company (“SPA” or “Mortgagor”), in
favor of the Bank, granting the Bank a first and prior mortgage lien against the Real
Property described therein. |
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| 1.21 | “Obligations” means the full and punctual observance and performance of
all present and future duties, covenants and responsibilities due to Bank under this
Agreement, the Note, the Loan Documents and otherwise, all present and future
obligations and liabilities to Bank for the payment of money under this Agreement, the
Note, the Loan Documents and otherwise (extending to all principal amounts, interest,
late charges, fees and all other charges and sums, as
well as all costs and expenses payable under this Agreement, the Note, the Loan
Documents and otherwise), whether direct or indirect, contingent or noncontingent,
matured or unmatured, accrued or not accrued, related or unrelated to this
Agreement, whether or not now contemplated, whether or not any instrument or
agreement relating thereto specifically refers to this Agreement and whether or not
of the same character or class as Borrower’s obligations under this Agreement or the
Note, including, without limitation, overdrafts in any checking or other account of
Borrower, whether or not secured under any other document, or agreement or statutory
or common law provision, as well as all renewals, refinancings, consolidations,
re-castings and extensions of any of the foregoing, the parties acknowledging that
the nature of the relationship created hereby contemplates the making of future
advances by Bank. |
| 1.22 | “Permitted Liens” shall mean Liens of Bank, or Liens specifically
consented to by Bank in writing. |
| 1.23 | “Person” means natural persons, corporations, associations, limited
liability companies, partnerships, joint ventures, trusts, governments and agencies and
departments thereof and every other entity of every kind. |
| 1.24 | “Real Property” means all of Borrower’s right, title, and interest in
and to that certain tract of real property owned by the SPA, together with all
Improvements thereto, if any. The Real Property shall be described on Exhibit “A” to
the Mortgage. |
| 1.25 | “Security Agreements” means the instruments to be executed by the
Borrower, and others, if any, delivered to the Bank for the benefit of the Bank to
secure payment of the Obligations, the forms of which shall be in form and substance
satisfactory to Bank. |
| 1.26 | “Tangible Net Worth” or “Tangible Balance Sheet Equity” means the total
assets less the sum of Intangible Assets, Total Liabilities, exclusive of Intangible
Assets. As used herein Intangible Assets means: goodwill, intellectual property,
patents, copyrights, and trademarks. As used herein Total Liabilities means the sum of
current liabilities, long term debt, and other miscellaneous liabilities. |
| 1.27 | “USDA” means United States Department of Agriculture acting through the
Rural Business — Cooperative Service a/k/a USDA Rural Development (“Agency”). |
| 1.28 | “USDA Unconditional Guarantee” means the USDA Form 4279-14 to be
executed by Guarantors in favor of Bank guarantying payment and performance of the
Note. |
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2. LENDING AGREEMENT. Subject to the terms and conditions of this agreement, the Bank
agrees to extend credit to the Borrower of up to the aggregate amount of not to exceed
$4,700,000.00 as further described herein.
| 2.1 | Lending Restriction. Notwithstanding any other provision of this
Agreement, any loan herein provided for will not be required to be made by the Bank if
since the date of this Agreement and up to the requested date of such advance or
anytime thereafter: (a) there has been a material adverse change in the financial
condition of the Borrower; or (b) any Default has occurred; or (c) any litigation or
governmental proceeding has been instituted against the Borrower which will adversely
affect the Collateral, or the financial condition or continued business operations of
the Borrower; or (d) should the USDA, at any time, withdraw or terminate its
Conditional Commitment for Guaranty or Loan Note Guaranty. |
3. LOAN TO BORROWER. The Loan to be made hereunder will be evidenced by Borrower’s Note.
The Note will be payable as set forth therein.
4. FEES. Borrower will pay the following fees in connection with this transaction:
| 4.1 | Loan Fees. Borrower shall pay Bank, an origination fee of $48,000.00.
Borrower shall pay a USDA Guaranty Fee of 1.60% ($75,200.00). |
| 4.2 | Service Fee. Beginning January 31, 2011, Borrower shall pay Bank an
annual service fee of 0.25% of the outstanding balance determined as of December
31st of each year. Said service fee will be payable by on or before January
31st of each year. |
| 4.3 | Attorneys’ Fees. Borrower shall pay Bank’s attorneys’ fees in the
amount of $7,500.00 incurred in connection with preparation of the Loan Documents.
Bank’s attorneys’ fees shall be paid at closing. |
5. COLLATERAL. Payment of the Borrower’s Note will be secured by the following collateral
security:
| 5.1 | Guaranty Agreements. SPA, Swickey, Durrett, FPRG, CIO, and RHA shall
guarantee the loan to Borrower. Each Preferred Investor will provide a limited guaranty
as shown on Schedule 1 attached hereto. |
| 5.2 | Real Estate Mortgage. A first title insured real estate mortgage
covering the Real Property. |
| 5.3 | Additional Collateral. Such additional collateral as might be agreed to
by the Borrower/Guarantors and the Bank. |
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6. ADVANCES. As soon as all of the conditions specified at paragraph 7 hereof are
satisfied, and subject to the terms of the Loan Documents, the Bank will advance amounts
under the Loan Documents to fund the Loan as agreed to herein. The Borrower and each Guarantor
hereby authorizes and approves such advances.
| 6.1 | Use of Loan Proceeds. The proceeds of the Loan under the Loan Documents
will be used as follows: (a) the loan proceeds will be invested by Borrower. |
7. CONDITIONS OF LENDING. The Bank’s obligation to fund the Loan is subject to the
performance of the following CONDITIONS PRECEDENT:
| 7.1 | Loan Documents. The Loan Documents shall have been duly authorized,
executed, and delivered to the Bank by all of the parties thereto, all in form and
substance satisfactory to the Bank. |
| 7.2 | Financial Information. The Bank shall have each received such financial
statements from such parties as they deem necessary in form satisfactory to the Bank. |
| 7.3 | Insurance. To the extent required by the Bank, Borrower and others, if
requested, shall have furnished certificates or policies of insurance issued in
amounts, by companies and against such risks as are satisfactory to the Bank. Such
risks shall include specifically hazard (fire, windstorm, lightening, hail, explosion,
riot, civil commotion, aircraft, vehicle, marine, smoke, and property damage) liability
and business interruption insurance with Bank as additional insured and/or loss payee.
Borrower shall also carry Worker’s Compensation insurance as required by law. |
| 7.4 | Authorization. Borrower have full power and authority to enter into
this Agreement, to make the borrowings hereunder, to execute and deliver all documents
and instruments required hereunder and to incur and perform the obligations provided
for herein, all of which have been duly authorized by all necessary and proper
corporate and other action, and no consent or approval of any person, including,
without limitation, stockholders or members, as the case may be, of Borrower and any
public authority or regulatory body, which has not been obtained is required as a
condition to the validity or enforceability hereof or thereof. |
| 7.5 | USDA Conditional Commitment. Bank shall have received a USDA
Conditional Commitment for a USDA Rural Development B & I Loan Note Guaranty of 80% for
the Loan in form and substance acceptable to Bank. |
| 7.6 | Mortgagee Title Insurance Binder. The Bank shall have received a
satisfactory original mortgagee’s title guaranty binder commitment in favor of the Bank
and issued by a title insurer and agent satisfactory to Bank, committing to issue an
American Land Title Association (ALTA) mortgagee’s title guaranty policy in the amount
of $2,800,000.00, insuring the Mortgage to be a first and prior lien on the Real
Property for the full amount of the Loan, subject only to such matters approved or
waived in writing by Bank. |
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| 7.7 | Appraisal of Real Property and FF&E. Bank shall receive an Appraisal of
the Real Property and FF&E acceptable in form and substance to Bank and the USDA. |
| 7.8 | Environmental Survey. Bank shall receive an environmental survey of the
Real Property acceptable in form and substance to Bank, and to the extent it is deemed
necessary by USDA, a separate environmental survey acceptable to the USDA. |
| 7.9 | Post Closing Balance Sheet. Prior to closing, and within ten (10) days
of each month thereafter until such time as USDA has issued the Loan Note Guaranty,
Bank shall receive a current Balance Sheet, acceptable to Bank, and prepared in
accordance with GAAP which shall reflect the assets and liabilities of Borrower (the
“Post Closing Balance Sheet”). Each Post Closing Balance Sheet shall show a balance
sheet equity position (Minimum Tangible Net Worth) of not less than twenty percent
(20%). |
| 7.10 | Continuing USDA Commitment to Issue Loan Note Guaranty or Continuous
Enforceable Loan Note Guaranty. If at any time, for any reason, USDA withdraws,
terminates or cancels its Conditional Commitment or Loan Note Guaranty, Bank may cease
making advances under the Note until such time as Bank receives a written
acknowledgement from USDA that the Conditional Commitment or Loan Note Guaranty as the
case may be, has been reinstated or affirmed upon terms and conditions satisfactory to
Bank. Should Bank not receive an acceptable written acknowledgement from USDA, Bank may
accelerate the Loan in its sole discretion, and the Loan shall be due and payable in
full. |
| 7.11 | USDA Requested Documents. If at any time prior to closing USDA requests
that Borrower execute a document or otherwise provide a representation, warranty, or
covenant, Borrower shall comply with said request. Any failure to comply shall
terminate and cancel Bank’s obligation to fund and/or constitute a default hereunder. |
8. REPRESENTATIONS AND WARRANTIES. To induce the Bank to enter into the Loan Documents and
advance funds in accordance herewith, the Borrower represents and warrants as follows:
| 8.1 | Financial Condition. The current financial statements of the Borrower,
and others, if any, together with all pro formas, and/or business plans, copies of
which have been furnished to the Bank, are correct and complete and fairly reflect
their respective financial conditions as of the date thereof. There has occurred no
material adverse change in the financial condition from the effective date thereof, to
the effective date hereof. |
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| 8.2 | Financial Information. Subject to any limitations stated therein or in
connection therewith, all balance sheets, and other financial data which have
been or may hereafter be furnished to the Bank do or will fairly represent the
financial condition of the respective party giving same or other party on whose
behalf such information is furnished to the Bank, as of the dates thereof and the
results of operations for the periods for which the same are furnished, and all
other information, reports, and other papers and data furnished to the Bank, are or
shall be at the time the same are so furnished, accurate and correct in all material
respects and complete insofar as completeness may be necessary to give the Bank a
true and accurate knowledge of the subject matter. |
| 8.3 | Litigation. There is no action, suit, proceeding or investigation
pending before any court or regulatory agency, or to the knowledge of the Borrower
threatened against Borrower or the Collateral, which might adversely affect it or the
Collateral, or impair Borrower’s ability to carry on its businesses substantially as
now conducted or result in any substantial liability not adequately covered by
insurance. |
| 8.4 | Taxes and/or other Federal Debt. Borrower has filed all federal, state,
and local tax returns which are required to be filed for the current fiscal year and
prior tax years and have paid or made provisions for payment of all taxes which have or
may become due pursuant to said returns. Borrower does not know of any basis for the
assessment of any deficiency taxes against them. Borrower is not delinquent upon any
Federal Debt. |
| 8.5 | Observance of Statutes. Borrower has not violated and will not in the
future violate any statute, regulation, or rule of any governmental body, where such
violation might materially adversely affect its business operations or financial
condition. The Borrower will exercise its best efforts to comply with all federal,
state, and local statutes, regulations and rules in all jurisdictions where they do
business. |
| 8.6 | No Default. The making and performance of the Loan Documents will not
violate any provision or constitute a default under the operating agreements of the
Borrower, any law, indenture, agreement, or instrument to which it is a party or by
which any of them or the Collateral is bound or affected. |
| 8.7 | Ownership. Except for the liens in favor of Bank, the Borrower, or one
or more of them, now has or will hereafter acquire title to the Collateral free and
clear of all prior claims, liens, encumbrances, and title retention devices. Mortgagor
is indefeasibly seized of the Real Property in fee simple as of the date of the advance
of Loan proceeds under this Agreement, and has full power and lawful authority to
mortgage and encumber the same, and that the Real Property is free and clear of all
encumbrances, except easements of record acceptable to Bank and liens in favor of Bank
and Permitted Encumbrances (as that term is defined in the Mortgage). |
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| 8.8 | Full Disclosure. None of the Loan Documents nor any statement or
instrument referred to therein or any other information, report, or statement delivered
to
the Bank by the Borrower or any other party on their behalf contains any untrue
statement or omits to state a material fact necessary to make the statements herein
or therein not misleading. |
| 8.9 | Acceptance of Funds. Borrower’s acceptance of the Loan Proceeds under
the Loan Documents will be deemed to constitute a representation and warranty to the
Bank that: (a) there has been no material adverse change in Borrower’s financial
condition; (b) no Default has occurred; and (c) there is no litigation pending or
threatened against Borrower which would adversely affect its financial condition. |
| 8.10 | Corporate Existence. Borrower is duly organized, legally existing and
in good standing under the laws of the State of their organization, have the power to
own their property and to carry on their business and are duly qualified to do business
and are in good standing in each jurisdiction in which the character of the properties
owned by any of them therein or in which the transaction of its business makes such
qualification necessary. |
| 8.11 | Enforceability. All of the Loan Documents when executed and delivered
will be valid, legally binding, and enforceable in accordance with their terms. |
| 8.12 | No Government Approval. No authorization or approval or other action
by, and no notice to or filing with any governmental authority or regulatory body is
required for the due execution, delivery and performance of any of the Loan Documents
to which it is a party. |
| 8.13 | Utilities. That all utility service necessary for the operation and
maintenance of the Real Property for its intended purpose, are available for the use of
the Borrower at the Real Property, including water supply, storm and sanitary sewer
facilities, electric, gas and telephone services. |
| 8.14 | Access. That adequate vehicular, pedestrian, and utility access for
reasonably direct ingress, egress, and service to and from the Real Property from
publicly owned and maintained paved roadways are available to the Real Property. |
| 8.15 | Environmental Concerns. That the Real Property has not been the subject
of an environmental impact study required by any Tribunal nor has such study been
deemed necessary and the past, present or contemplated use of the Real Property has not
violated and does not violate any Environmental Laws and the Real Property is not
within an area identified by any Tribunal as an area of contamination. |
| 8.16 | Licenses and Permits. Borrower has duly obtained and now holds all
licenses, permits, certifications, approvals and the like as required by federal, State
and local laws of the jurisdictions in which Borrower conducts its business, and each
remains valid and in full force and effect. |
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9. AFFIRMATIVE COVENANTS. Until payment in full of the Note and/or satisfaction of the
Obligations under the Loan Documents, unless the Bank otherwise consents in writing, the Borrower
will perform or cause to be performed the following agreements:
| 9.1 | Notice of Default. Borrower will give prompt notice to the Bank of: (a)
any Event of Default; (b) the instigation of any litigation against them which might
adversely affect their respective financial conditions; and (c) any other matter which
has resulted in an adverse change in their financial condition. |
| 9.2 | Records and Inspections. Borrower will keep and maintain full and
accurate accounts and records of their respective business operations according to
generally accepted accounting principles, and will permit the Agency and/or the Bank
and their respective designated representatives to have access thereto and make
examination and copies thereof at all reasonable times, to make audits, and to inspect
the Collateral, by way of both scheduled and unscheduled inspections. |
| 9.3 | Required Information. Borrower will furnish or cause to be furnished to
the Bank the following financial reports in form and substance satisfactory to Bank: |
| 9.3.1 | Borrower’s Annual Financial Statements. As soon as
available, and in any event within ninety (90) days after the end of each
fiscal year of Borrower beginning with fiscal year 2010, Borrower shall provide
its compiled Annual Financial Statement consisting of a Balance Sheet, Cash
Flow Statement, Income Statement, including aged receivables and payables, and
profit and loss statement, all in form and scope acceptable to Bank. Said
Financial Statements shall be prepared by a Certified Public Accountant
acceptable to Bank. |
| 9.3.2 | Guarantors’ Annual Financial Statements. As soon as
available, and in any event within ninety (90) days of the end of each
Guarantor’s fiscal or calendar year, each Guarantor shall provide its compiled
Annual Financial Statements in form and scope acceptable to Bank. |
| 9.3.3 | Federal Tax Returns. Borrower will submit to Bank,
within thirty (30) days of April 15th of each year, complete copies
of their respective Federal Tax Returns. If extensions are filed, then a copy
of such extension shall be due within the same thirty (30) day period and the
Tax Return shall be due within thirty (30) days of filing. |
| 9.3.4 | Additional Financial Reports. Upon request of Bank,
Borrower shall provide Financial Statements of any or all companies owned or
managed by Borrower in such form and substance and at such times as requested
by Bank. |
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| 9.3.5 | Subordinated Indebtedness
or Obligations. Until
payment in full of the Loan, Borrower shall not repay any indebtedness or
obligation to any stockholder, owner, officer, or affiliate without the consent
of Bank. |
| 9.3.6 | Other Information. Such other information concerning
the business affairs of the Borrower or others as the Bank might request from
time to time. |
| 9.3.7 | Maximum Debt to Equity Ratio. The Borrower will
maintain at all times a ratio of Total Liabilities to Tangible Net Worth of not
greater than 7.00 to 1.0., tested annually beginning December 31, 2010. |
| 9.3.8 | Maximum Current Ratio. The Borrower will maintain at
all times a ratio of current assets to current liabilities of not less than 1.0
to 1.0., tested annually beginning December 31, 2009. |
| 9.4 | Debt Service Coverage Ratio. Beginning with the end of the first
quarter of 2010, Borrower’s Debt Service Coverage Ratio (DSCR) on a consolidated basis
shall not be less than 1.25:1.0 calculated at the end of each calendar quarter for the
immediately preceding twelve month period. |
| 9.5 | Reimbursement of Bank. The Borrower will pay or will reimburse the Bank
for payment of all governmental charges, taxes, or penalties imposed on the Collateral
or the Loan Documents. |
| 9.6 | Additional Documents. The Borrower will promptly, on demand of the
Bank, execute all such additional agreements, contracts, indentures, documents,
corrective instruments, financing statements, and instruments in connection with this
Agreement as Bank might reasonably require. |
| 9.7 | Compensation. Compensation of officers or members of Borrower will be
limited to an amount that, when taken, will not adversely affect the repayment ability
of Borrower. This amount may not be increased year to year unless (1) an after-tax
profit was made in the preceding fiscal year; (2) the Borrower is and will remain in
compliance with covenants of the Loan Agreement; and (3) all of Borrower’s debts are
paid to a current status and (4) prior written concurrence of the Bank is obtained. |
| 9.8 | Use and Zoning Compliance. The Mortgagor covenants and agrees to comply
with all building, subdivision, zoning and similar ordinances and regulations
applicable to the operation of the Real Property and upon Bank’s written request the
Borrower shall obtain and deliver to the Bank the original or true copies of all
subdivision, building, zoning, use and other permits required with respect to the Real
Property. |
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| 9.9 | Easements and Restrictive Covenants. The Borrower covenants that all
future easements and restrictive covenants purporting to affect the Real Property shall
be submitted to the Bank for its approval prior to the execution
thereof by Borrower, which approval shall not be unreasonably conditioned, withheld
or delayed, with all proposed easements being accompanied by a survey showing the
location thereof. The Borrower further covenants to comply with all easements and
restrictive covenants affecting the Real Property. |
| 9.10 | Conveyances; Encumbrances. Mortgagor covenants that it will not sell,
transfer, or convey all or any portion of the Real Property, nor create, assume or
suffer to exist any mortgage, pledge, security interest, lien or encumbrance on the
Real Property (other than the Permitted Encumbrances), without the Bank’s prior written
consent. |
| 9.11 | Operation of the Real Property. At all times while owning and operating
the Real Property, the Mortgagor covenants and agrees that: |
| 9.11.1 | The Mortgagor shall comply with the requirements or all applicable federal,
state and local environmental, occupational health, safety and sanitation Laws,
ordinances, codes, rules and regulations, permits, licenses and interpretations
and orders of regulatory and administrative Tribunals with respect to the Real
Property. Without limiting the generality of the foregoing, the Mortgagor
agrees to comply with all requirements of CERCLA/XXXX and RCRA/HSWA, the
Federal Water Pollution Control Act, the Federal Clean Air Act, the Toxic
Substances Control Act, all as amended, and all air, water and hazardous and
solid waste Laws of the State of Oklahoma, |
| 9.11.2 | The Mortgagor shall immediately, as reasonably practicable, notify the Bank
of and provide the Bank with copies of any notifications of discharges or
releases or threatened releases or discharges of a Polluting Substance on,
upon, into, or from the Real Property which are given or required to be given
by or on behalf of the Mortgagor to any federal, state or local Tribunal, and
such copies of notifications shall be delivered to the Bank at the same time as
they are delivered to the Tribunal. The Mortgagor further agrees to promptly
undertake and diligently pursue to completion any appropriate and legally
required or authorized remedial containment and cleanup action in the event of
any release or discharge or threatened release or discharge of a Polluting
Substance on, upon, into or from the Real Property, and |
| 9.11.3 | At all times while owning and operating the Real Property, the Mortgagor
agrees to maintain and retain complete and accurate records of all releases,
discharges or other disposal of Polluting Substances on, onto, into or from the
Real Property, including without limitation, records of the quantity and type
of any Polluting Substances disposed of on or about the Real Property. |
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| 9.12 | Licenses and Permits. Borrower shall take all necessary steps to remain in
good standing with all of its licensing authorities, including without limitation,
the Oklahoma Secretary of State. Borrower shall notify Bank of any adverse findings
made by licensing authorities if such adverse findings cannot be corrected within
thirty (30) days. The Borrower’s loss of its operating license(s) shall constitute a
non-monetary default under this Agreement. |
| 9.13 | Record Keeping. Borrower and Guarantors shall prepare and maintain on a
current basis the following records, to the extent applicable to their operations, and
make them available to the Bank upon request: |
| (a) | Files for each director and principal of Borrower and/or SPA
including the name, address, social security number or federal identification
number and such other identifying information as the Bank may require; |
| (b) | Records concerning all securities and subordinated debt issued
by SPA which shall include: (i) the type of the security and subordinated debt
issued, (ii) the name, address and telephone number of the investor, (iii) the
date of the transaction, and (iv) the total amount of the qualified investment; |
| (c) | Records relating to each person making a qualified investment
which shall include the social security number or federal tax identification
number of each investor; |
| (d) | Records relating to SPA which shall include: (i) the name of
the business, (ii) location of the headquarters and principal business
operations of the business, (iii) a description of the type of business in
which engaged, (iv) evidence that the venture meets the definition of an
Oklahoma rural small business venture or Oklahoma small business venture, (v) a
copy of every contractual agreement entered into between Foxborough Capital
Company, LLC, an Oklahoma limited liability company (“Foxborough”) and SPA,
(vi) the amount of qualified investment in SPA, (vii) the type of investment
along with supporting documentation, (viii) the date of the investment, and
(ix) the source of funds invested; |
| 9.14 | Additional Records. Borrower and Foxborough shall maintain the
following additional records: (i) records relating to the capitalization of Borrower or
Foxborough which is not invested in SPA, (ii) records relating to all distributions
made by Foxborough including the date of the distribution, the amount of the
distribution, to whom the distribution was paid, and the purpose of the distribution,
and (iii) all other records that may be requested by the Bank. |
| 9.15 | Annual Reports to Bank. SPA shall file an annual report with the Bank
by no later than April 30th of each year, which lists all qualified
investments in or in conjunction with such company which may qualify for tax credits
under Oklahoma law. The reports shall state the amount of qualified investments in or
in conjunction with such company during the taxable year by persons, partnerships or
corporations and the social security number of such person or the federal
identification number of such partnership or corporation making such qualified
investments. The reports shall also include a schedule listing the type and amount
of qualified investment made by or in conjunction with SPA. |
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10. NEGATIVE COVENANTS. The Borrower covenants and agrees that until payment in full of all
of the Obligations owing to the Bank under the Loan Documents, unless the Bank consents in writing:
| 10.1 | Creation of Liens. Except for the liens in favor of the Bank, the
Borrower will not create, assume, or suffer to exist, any mortgage, vendor’s lien,
pledge, security interest, encumbrance, or other lien against any of the Collateral,
whether now owned or hereafter acquired. |
| 10.2 | Loan. Borrower shall not loan or make advances to any other person or
guarantee, indorse or otherwise be or become liable or contingently liable in
connection with the obligations or Indebtedness of any other person, firm or
corporation, directly or indirectly, except: |
| (i) | as an endorser of negotiable instruments for the payment of
money deposited to Borrower’s bank account for collection in the ordinary
course of business; |
| (ii) | trade credit extended in the ordinary course of Borrower’s
business; or |
| (iii) | advances made in the usual course of business to officers and
employees of Borrower for travel and other out-of-pocket expenses incurred by
them on behalf of Borrower in connection with such business. |
| 10.3 | Liquidation or Merger. The Borrower shall not liquidate, dissolve or
enter into any consolidation, merger, partnership, joint venture, syndicate, pool, or
other combination, or convey, sell, assign or lease any substantial part of its assets
or business without the prior written consent of the Bank. |
| 10.4 | Sale or Purchase of Fixed Assets, etc. Borrower will not invest in
additional fixed asset purchases in an annual aggregate of more than $50,000.00 without
concurrence of Bank. Borrower will not lease, sell, transfer, or otherwise encumber
fixed assets without the concurrence of the Bank. Disposition of fixed assets serving
as collateral for the Loan must also have the concurrence of USDA Rural Development. |
| 10.5 | Dividends: Distribution. Borrower shall not pay or permit to be paid
any dividend or make any distribution of any assets or make any advances or Loan to
members, owners, stockholders, officers, employees, or affiliates that, when taken,
will not adversely affect the repayment ability of Borrower. No dividend payments will
be made unless (1) an after-tax profit was made in the preceding fiscal year; (2) the
Borrower is and will remain in compliance with covenants
of the Loan Agreement; (3) all of Borrower’s debts are paid to a current status; and
(4) prior written concurrence of the Bank is obtained. This is not intended to apply
to dividend payments to cover personal tax liability resulting from profitability of
the business. |
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| 10.6 | Investments. Outside investment and Loan/advances to members, owners,
officers, or affiliates shall require the prior written consent of the Bank. Loan from
members, owners, officers, or affiliates shall be subordinated to the Loan or converted
to stock. No payments are to be made on these debts unless the Loan are current and in
good standing. |
| 10.7 | Contingent Liabilities. Borrower will not assume, guarantee, endorse,
or otherwise become contingently liable for the obligation of any person, firm, or
corporation. |
| 10.8 | Other Agreements. Borrower will not enter into any agreement which
limits or restricts their ability to comply with the terms of this Agreement. |
11. DEFAULT. The Bank may terminate all obligations of the Bank to make further
disbursements under the Loan Documents, including the Note, and the Bank may declare all
indebtedness and Obligations owing to the Bank evidenced by the Loan Documents to be immediately
due and payable if any of the following events occur:
| 11.1 | Nonpayment of Note. Default in payment within ten (10) days of when due
of any interest on or principal on the Note; or |
| 11.2 | Other Nonpayment. Default in payment when due of any amount payable to
the Bank under the terms of this Agreement, any of the Loan Documents; or |
| 11.3 | Breach of Agreement. Default in the performance or observance of any
covenant contained in any of the Loan Documents; or |
| 11.4 | Application of Loan Proceeds. Any failure to apply the loan proceeds
pursuant to the provisions as provided herein; or |
| 11.5 | Representations and Warranties. Any representation, statement,
certificate, schedule or report made or furnished to the Bank proves to be false or
erroneous in any material respect at the time of the making thereof or any warranty
ceases to be complied with in any material respect; or |
| 11.6 | Insolvency. The admission by the Borrower of an inability to pay debts
as such debts mature or an assignment for the benefit of creditors; or |
| 11.7 | Bankruptcy. The filing of a petition in either a voluntary case or an
involuntary case of bankruptcy, reorganization, insolvency, liquidation or receivership
proceedings by or against Borrower; or |
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| 11.8 | Judgment. Entry by any court of a final judgment against the Borrower,
or the Collateral, or an attachment of any Collateral in excess of $100,000.00; |
| 11.9 | Casualty Loss. Substantial damage or destruction of all or
substantially all of the Collateral not otherwise covered by insurance; or |
| 11.10 | Notice and Right to Cure. Borrower shall be given notice and thirty
(30) business days in which to cure defaults caused by the events described in items
11.2 through 11.9. No notice or right to cure any other defaults shall be required.
Should Borrower fail to cure a default as provided herein Bank may assess Default
Interest from the date of Borrower’s original breach of the covenant. |
| 11.11 | Violation of Lending Restriction. A breach of the Lending Restriction
covenant as provided in Section 2.1 shall constitute a default hereunder. |
12. REMEDIES. In the Event of Default or at Maturity:
| 12.1 | Acceleration of Indebtedness. The Bank may accelerate payment of all of
the indebtedness evidenced by the Note and all other indebtedness owing under the Loan
Documents and declare the same to be immediately due and payable, and the Bank will
thereafter be entitled to foreclose the Mortgages and proceed to selectively and
successively enforce its rights under the Loan Documents or any one or more of them;
provided that if any Default occurs under paragraph 11.6 or paragraph 11.7 hereof, all
indebtedness evidenced by the Borrower’s Note and the other Loan Documents will be
automatically accelerated without an election of the Bank and will become immediately
due and payable without protest, presentment, notice or demand, all of which are hereby
expressly waived by the Borrower, and the Bank will thereafter be entitled to
selectively and successively enforce its rights under the Loan Documents or any one or
more of them. |
| 12.2 | Selective Enforcement. In the event the Bank elects to selectively and
successively enforce its rights under any one or more of the instruments securing
payment of the indebtedness evidenced by the Loan Documents, such action will not be
deemed a waiver or discharge of any other lien or encumbrance securing payment of such
indebtedness until such time as the Bank has been paid in full all sums owing to Bank. |
| 12.3 | Waivers; Amendments. No waiver of any provision of any of the Loan
Documents, nor consent to any departure therefrom, shall in any event be effective
unless the same shall be in writing and signed by the Bank and then such waiver,
consent or amendment shall be effective only in the specific instance and for the
specific purpose for which given. Any amendment to the Loan Documents must be in
writing signed by the Bank. |
| 12.4 | Deposits; Set off. Regardless of the adequacy of any other collateral
held by the Bank, any deposits or other sums credited by or due from the Bank to the
Borrower will at all times constitute collateral security for all Obligations and
may be set off against any and all liabilities, direct or indirect, absolute or
contingent, due or to become due, now existing or hereafter arising, to Bank. The
rights granted by this paragraph will be in addition to the rights of the Bank under
any statutory banker’s lien or right of common law set off. |
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| 12.5 | Performance by the Bank. The Bank will at any time after Default have
the right (but not the obligation) to pay any secured or unsecured claim (whether prior
or subordinate to the liens held by the Bank) affecting the Collateral, in such manner
as the Bank determines. The Borrower hereby authorizes the Bank to increase the
indebtedness owing to the Bank by the cost of satisfying claims against the Collateral
and agrees that the Loan Documents will evidence and secure payment of such costs
whether or not the total funds advanced exceed the face amount of the Loan Documents. |
| 12.6 | Waiver of Rights. Each party hereto waives all rights, if any, as an
accommodation party and/or surety. |
| 12.7 | Cumulative Remedies. No failure on the part of the Bank to exercise and
no delay in exercising any right hereunder will operate as a waiver thereof, nor will
any single or partial exercise by the Bank of any right hereunder precludes any other
or further right of exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not alternative. |
13. MISCELLANEOUS. It is further agreed as follows:
| 13.1 | Survival of Representations. All representations and warranties made
herein will survive the making of the Loan hereunder and the delivery of the Loan
Documents and will continue during the term of the loan evidenced by the Loan Documents
and all renewals thereof. |
| 13.2 | Expenses. The Borrower agrees to reimburse the Bank for all attorneys’
fees and expenses resulting from or incidental to the negotiation and preparation of
the Loan Documents, and the collection or enforcement of the Loan Documents, of the
protection or the Bank’s rights in the Collateral in the event of Default. |
| 13.3 | Indemnification. The Borrower hereby agrees to indemnify and hold the
Bank harmless from any and all liability, loss and expense, including attorneys’ fees,
whether incurred by retainer, salary or otherwise, incurred by such parties in good
faith (a) in complying with or enforcing the terms of this Agreement or the Loan
Documents or (b) as a result of any claim made by any party under the laws of any
governmental entity, including, but not limited to state or federal securities or tax
laws. |
| 13.4 | Notices. All notices, requests, and demands will be served personally
or by registered or certified mail as follows: |
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| The Borrower: | FB S. Plains Financing, LLC | |||
| 0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 | ||||
| Xxxxxxxx Xxxx, XX 00000 | ||||
| Attn: | ||||
| Bank: | First Liberty Bank | |||
| Attn: Xxxx X. Xxxx | ||||
| 0000 X. Xxx Xxxxxx | ||||
| Xxxxxxxx Xxxx, XX 00000 | ||||
| Copy To: | Xxxxx Xxxxxx, P.C. | |||
| X.X. Xxx 000 | ||||
| Xxxxxxxx Xxxx, XX 00000 | ||||
| Attn: Xxxxx Xxxxxx |
or at such other address as any party hereto designates for such purpose in a
written notice to the other parties hereto. Unless otherwise provided in this
Agreement, notices will be deemed to have been given on the date notice is served
personally or the date which is three (3) calendar days following the date on which
such notice is placed in the United States mail, properly addressed, postage
prepaid.
| 13.5 | Limitation of Liability — Indemnification. In administering the loan
evidenced and secured by the Loan Documents and dealing with the Collateral, the Bank
makes no representation and assume no responsibility to the Borrower or any Guarantor,
or any other person with respect to: (a) the value, marketability, quality, quantity,
ownership or condition of any of the Collateral: (b) the validity, collectability of
any instrument, certificate, inventory, appraisal, opinion or other document delivered
or to be delivered to either of the Bank in connection with the Loan Documents. Nothing
in the Loan Documents will entitle any parties other than the Bank, the Borrower, and
the Guarantors to rely thereon and no person will be deemed a third party beneficiary
thereof. So long as the Bank acts in good faith in the administration of the loan
evidenced by the Loan Documents and the enforcement of the Loan Documents, the Bank
will incur no liability whatsoever to the Borrower or Guarantors, or any other party
and will be responsible only for the gross negligence and willful misconduct of the
Bank and the Bank’s officers and employees. The Bank will have the right to consult
with legal counsel of Bank’s choice and to be fully exonerated from liability for any
action taken in good faith in accordance with the advice of such legal counsel.
Borrower and Guarantors will jointly and severally indemnify and hold the Bank harmless
from any and all liability, loss and expense, including attorneys’ fees, incurred by
such parties in good faith (a) in complying with or enforcing the terms of this
Agreement or the Loan Documents or (b) as a result of any claim made by any party under
the laws of any governmental entity, including, but not limited to any state or federal
securities or tax laws. |
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| 13.6 | Construction. This Agreement, the Loan Documents and all other
documents issued under this Agreement are intended to be contracts made under the laws
of the State of Oklahoma and are to be construed in accordance with the laws of said
state. Nothing in this Agreement will be construed to constitute the Bank as a joint
venturer, with the Borrower or any other party related thereto or to constitute a
partnership. Except for the defined terms which appear in the subparagraphs under
Paragraph 1 of this Agreement, the descriptive headings of the paragraphs of this
Agreement are for convenience only and are not to be used in the construction of the
content of this Agreement. This Agreement may be executed in multiple counterparts,
each of which will be an original instrument, but all of which will constitute one
agreement. |
| 13.7 | Binding Effect. This Agreement will be binding on the Borrower or other
party who executes same, and their respective successors and assigns and will inure to
the benefit of the Bank, and the Bank’s respective successors and assigns. Bank may
assign its rights hereunder, in part or as a whole, and may assign any Loan Document
executed and delivered to Bank. |
| 13.8 | Venue and Jurisdiction. It is agreed that the debt evidenced by the
Loan Documents was contracted in Oklahoma County, Oklahoma, the Note, the Loan
Documents and all other instruments of indebtedness are hereby deemed to have been
given when received and accepted by the Bank at the Bank’s banking house in Oklahoma
City, Oklahoma. Borrower hereby waives all objections to venue and consents to the
jurisdiction of any state or federal court located in Oklahoma County, Oklahoma or the
county in which the Real Property is situated, in connection with any action instituted
by the Bank by reason of or arising out of the execution, deliver, or performance of
any of the Loan Documents. |
| 13.9 | Severability. In case any one or more of the provisions contained in
the Loan Documents should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained herein and
therein will not in any way be affected or impaired thereby. |
| 13.10 | Usury. It is the intention of the parties hereto to conform strictly
to applicable usury laws now in force. Accordingly, if the transactions contemplated
hereby would be usurious under applicable law, then, in that event, notwithstanding
anything to the contrary in any of the Loan Documents or in any other instrument or
agreement entered into in connection with or as security for the Loan Documents, it is
agreed as follows: (i) the aggregate of all consideration that constitutes interest
under applicable law and that is contracted for, charged or received under this
Agreement or under any of the Loan Documents (whether designated as interest, fees,
indemnities, payments or otherwise) shall under circumstances exceed the maximum amount
of interest permitted by applicable law calculated on the basis of the actual number of
days elapsed over a year of three hundred sixty-five (365) days or three hundred
sixty-six |
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(366) days, as the case may be, and any excess shall be canceled
automatically and, if theretofore paid, shall be credited on the Note by the holder thereof (or,
if the Note and all other indebtedness owing under the Loan Documents have been paid
in full, refunded to the Borrower); and (ii) in the event that the maturity of the
Note is accelerated by reason of an election of the Bank resulting from a Default
under this Agreement or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may never include more
than the maximum amount permitted by applicable law, and excess interest, if any,
provided for in this Agreement or otherwise shall be canceled automatically as of
the date of such acceleration or prepayment and, if theretofore paid, shall be
credited on the Note (or, if the Note and all other indebtedness under the Loan
Documents have been paid in full, refunded to the Borrower). All sections and
provisions of this Agreement, the Note, the Loan Documents and the other instruments
now or hereafter executed in connection with or as security for any of such
agreements or instruments, including without limitation those sections and
provisions calling for the calculation of interest on the basis of the actual number
of days elapsed over a year of three hundred sixty (360) days, are subject to this
paragraph 13.10, which limits the maximum amount of interest. Notwithstanding
anything contained herein to the contrary, the Bank will not be required to advance
any funds if on the date of any proposed advance the prevailing interest rate which
the Bank intends to charge (including rates of discount and commissions with respect
to bankers acceptance financing) would violate the usury laws of the State of
Oklahoma.
| 13.11 | Mistakes — Liquidated Damages. Borrower and Guarantors hereby
expressly waive any mistakes, inaccuracies, or misstatements made in connection with
the preparations of the Loan Documents. Borrower and Guarantors further expressly agree
that the maximum liability which may be incurred by Bank due to any such mistake,
inaccuracy, or misstatement shall be collectively One Thousand Five Hundred and 00/100
Dollars ($1,500.00), such sum being agreed upon as liquidated damages collectively
available to Borrower and Guarantors, their total damages and relief hereunder. |
In addition, in the event the Loan Documents or any one of them misstates or
inaccurately reflects the true and correct terms and provisions of said Loan
Document(s) and said misstatement or inaccuracy is due to unilateral mistake on the
part of Bank, mutual mistake on the part of Bank, Borrower, and/or Guarantors, or
clerical error, then in such event, Borrower and/or Guarantor shall, upon request by
Bank and in order to correct such misstatement or inaccuracy, execute such new
documents or initial such corrected original documents as Bank may deem necessary to
remedy said inaccuracy or mistake. Borrower’s and/or Guarantors’ failure to initial
or execute such documents as requested shall constitute a default under the Loan
Documents.
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| 13.12 | Entire Agreement. The Loan Documents and all documents executed in
connection therewith constitute the entire agreement among parties hereto and
encompassing their entirety all prior written and oral negotiations,
understandings, representations, warranties and agreements among such parties. |
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be duly executed as of
the date first above written.
| BORROWER: | FB S. PLAINS FINANCING, LLC, an | ||||
| Oklahoma limited liability company | |||||
| By: | FOXBOROUGH MANAGEMENT COMPANY, LLC, | ||||
| an Oklahoma limited liability company, | |||||
| Manager of FB S. Plains Financing LLC | |||||
| By: | /s/ Xxxxxx X. May | ||||
| XXXXXX X. MAY, | |||||
| Manager of Foxborough Management Company, LLC | |||||
| GUARANTORS: | SOUTHERN PLAINS ASSOCIATES, L.L.C., | ||||
| an Oklahoma limited liability company | |||||
| By: | /s/ Xxxxx X. Xxxxxxx | ||||
| XXXXX X. XXXXXXX, Manager | |||||
| CAPITAL INVESTORS OF OKLAHOMA, LLC, | |||||
| an Oklahoma limited liability company | |||||
| By: | /s/ Xxxxx X. Xxxxxxx | ||||
| XXXXX X. XXXXXXX, Manager | |||||
| /s/ Xxxxx X. Xxxxxxx | |||||
| XXXXX X. XXXXXXX, an individual | |||||
| /s/ Xxxxx X. Xxxxxxx | |||||
| XXXXX X. XXXXXXX, an individual | |||||
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| FIRST PHYSICIANS REALTY GROUP, LLC, | |||||
| an Oklahoma limited liability company | |||||
| By: | /s/ Xxxxx Xxxxxxxxxx | ||||
| XXXXX XXXXXXXXXX, Manager | |||||
| RURAL HOSPITAL ACQUISITION, L.L.C., | |||||
| an Oklahoma limited liability company | |||||
| By: | /s/ Xxxxxx Xxxx | ||||
| XXXXXX XXXX, President | |||||
| BANK: | FIRST LIBERTY BANK | ||||
| By: | /s/ Xxxxx Xxxxxxx | ||||
| XXXXX XXXXXXX, Xx. Vice President | |||||
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